CEI: Toward Performance-Based Transportation Safety Regulation

By: Marc Scribner, Competitive Enterprise Institute Senior Fellow

Businesses and entrepreneurs have long complained about having to comply with unnecessarily rigid regulations that stress adherence to administrative rules rather than performance-based regulations, which focus on results. In recent decades politicians from both major parties have attempted to prioritize regulatory outcomes over detailed prescription and compliance, with varying degrees of success. In 1993, President Bill Clinton issued Executive Order 12866, which instructed regulatory agencies to “specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt.” This performance-based approach was retained by President George W. Bush and reaffirmed in 2011 by President Barack Obama through Executive Order 13563.

The bipartisan recognition that prescriptive safety regulations can inhibit both economic growth and the achievement of regulatory outcomes has remained fairly constant. However, this progress has been far from uniform at the Department of Transportation. One mode largely left out of this trend has been freight rail. Recent actions by the Federal Railroad Administration highlight the need for continuing the kind of movement toward performance-based regulation we have seen for autos, pipelines, aircraft, trucks, and passenger rail.

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